We frequently rail against forced arbitration clauses used in nursing home admission contracts which limit the rights of residents and their family to seek recourse following neglect and mistreatment. All Illinois families are urged to avoid these “agreements” at all costs.
But what is truly unfair about arbitration agreements? It is helpful to run down a list of a few of the aspects to the process that slant against the consumer.
Juries & Evidence
There are many different reasons why arbitration is unfair for nursing home residents. Just consider how a large corporate defendant--like a nursing home company--would create a dispute resolution system if they could make it themselves. Would they keep the jury? Would they allow the parties extended time to discover all of the information about the case? Would they make it affordable for lower income plaintiffs?
The answer to those questions is: No. In almost every aspect arbitration is set-up to take what big-defendants like about the regular civil justice system and discard what they do not. For attorneys who work in the system and appreciate the significance of all of these procedural decisions, it is obvious that arbitration is nothing more than a way for big companies to be held less accountable for the consequences of their mistakes.
Consider the jury. Essentially since the nation’s founding, Americans have appreciated that when two sides disagree, the fairest way that we have decide the matter it to take a sampling of neutral fellow citizens (the jury), present the information to them, and have them decide.
But considering that companies often engage in conduct that harms other--and juries call them on it--they use arbitration as a way to sidestep those jurors altogether. Instead, arbitration limits the decision to anywhere from one to three paid professionals. In some cases those arbitrators have close personal connections to the very industry that is accused of wrongdoing. This is a huge step away from a fair group of unbiased decision makers. There is no way around it, by taking away the right to a jury in nursing home neglect cases, forced arbitration inflicts a damaging blow on the rights of all community members to seek the protection of the law when they are harmed by negligence.
But it doesn’t end there. Many procedural details are changed with arbitration to the disadvantage of the plaintiff. For one thing, there is limited “discovery.” Discovery is the process by which both sides in the case collect evidence to be used in a potential trial.
It can include interviews with important individuals, requests for documents, and more. In nursing home neglect cases, discovery is usually more important for the plaintiff who is trying to show the neglect. Nursing home defendants would rather no information change hands--making it easier for them to hide their mistreatment. The limited time-frame of arbitration and lack of procedural protections (i.e. there is no subpoena power) makes it very difficult for many injured parties to collect the evidence they need to prove mistreatment. That does not mean that elder neglect did not take place, just that the process allows nursing home to more easily skirt their responsibilities.
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